Girlfriend Turns In Pedophile, Gives Texts, But No Probable Cause? - U.S. Sixth Circuit
U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

Girlfriend Turns In Pedophile, Gives Texts, But No Probable Cause?

Charles Kinison, Jr. is an alleged pedophile. We say “alleged” because he is innocent until proven guilty. That being said, if the facts contained in this opinion are true, it’s only a matter of time.

And he almost got away with it.

Kinison allegedly collected and viewed images and videos of child porn. He told his girlfriend, via text message, that he wanted the two of them to join a group that adopted children for the purposes of sexual abuse. He also proposed that they babysit a child in order to produce porn (to prove their “cred” with the pedo crowd) and texted her vivid descriptions of the disgusting acts he was witnessing on his computer.

She apparently played along, stating that not joining the Georgia group would be like "cancelling Christmas." She then turned him in to the police, allowed the police to copy the text messages off of her phone, and provided the information used in an affidavit in support of a search warrant. The police executed that warrant on Kinison's house and phone, and found hundreds of images and forty videos of child pornography.

Should be an open and shut case, right? The lower court ruled that the warrant was not supported by sufficient independent information (such as an IP address, an email with porn attached, etc.) and was therefore invalid. They also ruled that the cops were wrong to rely on such an obviously invalid warrant. All of the evidence seized was therefore excluded.

Lets all say it together: "Are you [expletive] kidding me?"

Though the Sixth wasn't quite as concise, their opinion exhaustively points out all of the reasons why the lower court was wrong and why the warrant was supported by probable cause. The reasons include:

  1. the actual text messages;
  2. the credibility of the girlfriend, who inculpated herself in a serious crime and provided police with evidence of that crime;
  3. the clearly intimate nature of the parties' relationship evident from the text messages;
  4. her statement that Kinison viewed the images in his home;
  5. prior case law where the court stated that child pornography crimes are secretive and typically carried out in the home;
  6. the officers' corroboration of Kinison's identity with the girlfriend; and
  7. the officers' verification of Kinison's address

A magistrate judge is supposed to make a "common sense" determination of whether evidence is likely to be found in a particular place based on the facts set forth before him. Common sense tells us that text messages and the above information should be enough.

Apparently, common sense escaped the lower court.

The court also points out that even if there wasn't probable cause, there was enough information -- between the investigation, affidavit, and informant -- that it would be perfectly reasonable for police to rely upon the validity of the warrant. Remember that in a post-Davis world, absent a "duh" situation where the police should have known, the remedy isn't exclusion.

We don't punish cops, and the public interest, for judges' mistakes.

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